The UK government has commenced a consultation regarding standards essential patents and their impact on innovation. As the consultation's introduction says, "The government seeks views as to whether the Standard Essential Patents (SEPs) ecosystem (i.e. the enabling participants, commercial relationships, infrastructure, and legal and regulatory environment) surrounding SEPs is functioning efficiently and effectively and striking the right balance for all entities involved." It is doubtful that any company that has been involved in the often multi-jurisdictional and always expensive litigation concerning SEPs would regard the SEP ecosystem as functioning efficiently and effectively. There is a fundamental disconnect in that telecoms companies generally operate and licence on a global basis, yet the relevant standards provide no mechanism themselves for resolving disputes, leaving the parties with no choice but to engage in litigation in national courts. Furthermore, the number of patents involved is enormous: for example, the consultation request notes that, as of 2020, around 95,000 patents had been declared essential for the 5G standard.
The consultation closes on 1 March 2022. Given the global nature of this technology, it will be very interesting to see what steps the UK government decides it can take to improve the SEP ecosystem. Better clarity on licence terms and on the basis on which any patent is declared to be essential to a standard would appear to be two likely possibilities.
Standards and patents can span across multiple disciplines and sectors. In some cases, standards require the use of specific technologies protected by patents. A patent that protects technology which is essential to implementing a standard is known as a standard essential patent (SEP). Without using the methods or devices protected by these SEPs, it is difficult for a manufacturer (or “implementer” of the standard) to create standard-compliant products, such as smartphones or tablets.
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